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Johnson v Angus

Johnson v Angus

Case [2012] NSWLEC 1207 27 July 2012

Nuisance

Adverse Possession

Easements & Covenants

Property Law

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Land and Environment Court

New South Wales

Medium Neutral Citation: Johnson & Ors v Angus & Anor [2012] NSWLEC 1207
Hearing dates: 4 June 2012 and 26 July 2012
Decision date: 27 July 2012
Jurisdiction: Class 2
Before: Galwey AC
Decision:
(1)The application is upheld in part.
(2)The directions made at the hearing of 4 June 2012 are vacated.
(3)The applicants are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with appropriate insurance to remove T11 and the largest stem of T14 within 30 days of the date of these orders. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.
(4)The respondents are to provide all access necessary for the works in (3) on reasonable notice and during reasonable hours of the day.
(5)The respondents are to engage a suitably qualified arborist (minimum AQF Level 3) to periodically (annually or as required) prune T4-T9 and T12-T20, including the remaining stems of T14, to remove fronds that overhang the applicants' property and that obstruct the view, in such a way that the trees' ongoing vigour and condition are not adversely affected. The works are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. The initial pruning is at the respondents' expense. The cost of subsequent pruning is to be shared equally by the parties with the applicants paying the respondents 50% of any receipted invoice for the pruning works within 7 days of receiving such an invoice, if that invoice is provided to them within 14 days of completion of the works.
(6)The applicants are to provide all access necessary for the works in (5) on reasonable notice and during reasonable hours of the day.

Catchwords: TREES [NEIGHBOURS] Hedge; obstruction of views; one tree not part of hedge; planted so as to form a hedge; removal of two trees and pruning of others.
Legislation Cited: Trees (Disputes Between Neighbours) Act 2006
Cases Cited: Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336
Breen & Anor v Caronna & Anor [2008] NSWLEC 293
Cavalier v Young [2011] NSWLEC 1080
Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122
Hendry & anor v Olsson & anor [2010] NSWLEC 1302
McLaren v Lewis [2011] NSWLEC 1170
Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107
Salisbury v Harrison & anor [2011] NSWLEC 1069
Torday & Anor v Eather [2012] NSWLEC 1014
Wisdom v Payn [2011] NSWLEC 1012
Category: Principal judgment
Parties:
Mr Anthony Johnson (First Applicant)
Ms Pauline Neville (Second Applicant)
Ms Lynne Parsons (Third Applicant)
Mr Kenneth Angus (First respondent)
Ms Jennifer Angus (Second respondent)
Representation: Counsel
Ms Angela Pearman (Applicants)
Bartier Perry (Applicants)
Mr Kenneth Angus (Respondents) (Litigant in person)

File Number(s): 20265 of 2012

Judgment

COMMISSIONER: A property with narrow frontage to Clareville Beach has been in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Johnson v Angus

Details

AGLC: Johnson v Angus [2012] NSWLEC 1207
Case: [2012] NSWLEC 1207
Decision Date: 27 July 2012

CaseChat Overview and Summary

The matter of Johnson v Angus was heard in the Land and Environment Court of New South Wales. The dispute involved the applicants, Johnson, who sought an order for the removal of trees from the respondents' property, Angus, which were overhanging and obstructing the applicants' view. The Johnsons also sought a direction for the periodic pruning of trees to prevent them from overhanging their property again. The respondents opposed the application, arguing that the trees were not a nuisance and that their removal and pruning would be unreasonable.

The primary legal issues before the court were whether the trees constituted a nuisance and whether the court should grant the orders sought by the applicants. In determining whether the trees constituted a nuisance, the court considered the extent of the obstruction caused by the trees, the duration and frequency of the obstruction, and the nature of the neighbourhood. The court also considered whether there were any alternative remedies available to the applicants that would be less drastic than the removal or pruning of the trees.

The court found that the trees did constitute a nuisance as they were significantly overhanging and obstructing the applicants' view. The court also found that the removal and pruning of the trees were reasonable measures to alleviate the nuisance. The court made orders for the removal and pruning of the trees, as sought by the applicants, but also made modifications to the orders to ensure that they were reasonable and proportionate to the nuisance caused.

The final orders made by the court included the removal of certain trees within a specified timeframe and in accordance with industry codes of practice. The court also ordered the periodic pruning of certain trees to prevent them from overhanging the applicants' property again. The cost of the initial pruning was to be borne by the respondents, with subsequent pruning costs shared equally by the parties. The court also made orders for access to the property for the removal and pruning works.

Orders

Orders of the court

(1)The application is upheld in part.

(2)The directions made at the hearing of 4 June 2012 are vacated.

(3)The applicants are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with appropriate insurance to remove T11 and the largest stem of T14 within 30 days of the date of these orders. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry.

(4)The respondents are to provide all access necessary for the works in (3) on reasonable notice and during reasonable hours of the day.

(5)The respondents are to engage a suitably qualified arborist (minimum AQF Level 3) to periodically (annually or as required) prune T4-T9 and T12-T20, including the remaining stems of T14, to remove fronds that overhang the applicants' property and that obstruct the view, in such a way that the trees' ongoing vigour and condition are not adversely affected. The works are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. The initial pruning is at the respondents' expense. The cost of subsequent pruning is to be shared equally by the parties with the applicants paying the respondents 50% of any receipted invoice for the pruning works within 7 days of receiving such an invoice, if that invoice is provided to them within 14 days of completion of the works.

(6)The applicants are to provide all access necessary for the works in (5) on reasonable notice and during reasonable hours of the day.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Johnson v Angus [2012] NSWLEC 1207

Most Recent Citation

Johnson v Angus [2012] NSWLEC 192

Cases citing this decision · 3 of 3 shown

Arnold v Persson
[2022] NSWLEC 1270 Para 9

…Act was younger (the Trees Act was amended in 2010 to include Pt 2A) the Court sometimes made orders for palms. For instance, in Johnson v Angus [2012] NSWLEC 1207, I gave orders to prune and remove some palms in a long row of palms. Mr Tsang also referred to examples, such as Barnes v Loveridge; Unicomb v Loveridge…
Harrison v Treasure
[2018] NSWLEC 1190 Para 14

…In Johnson & ors v Angus & anor [2012] NSWLEC 1207, I explained at paragraphs 19 to 32 why a particular tree was not part of a hedge within the context of the Trees Act. An appeal to that decision was heard by the Court’s Chief Judge. In Johnson v Angus [2012] NSWLEC 192, at paragraphs 19 to 29, Preston CJ discussed…
Johnson v Angus
[2012] NSWLEC 192 Para 1

…palm (T4) and numerous Bangalow palms (T5-T9, T12-T20 and the remaining stems of T14), but not the removal of the Turpentine T1: see Johnson v Angus [2012] NSWLEC 1207 at [46]. The Commissioner found that the palms that he ordered to be removed or pruned: were more than 2.5m in height (paras 6 and 33); had been plan…

View all 3 citing cases →

Cases cited in this decision · 10 of 10 shown

Torday v Eather
[2012] NSWLEC 1014 Para 1

…licants, submitting that the twenty trees form a hedge, argues that Fakes C addressed the relevant jurisdictional questions in Torday & Anor v Eather [2012] NSWLEC 1014. She submits that the judgment demonstrates that trees do not have to be of the same species and do not have to be planted on the same level, both no…
Bentley v Symonds; Ghenzer v Symonds
[2011] NSWLEC 1336 Para 1

…efore the Court has its own circumstances and each must be assessed on its merits. In Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336, Fakes C discussed at [23]:…
Granthum Holdings Pty Ltd v Miller
[2011] NSWLEC 1122 Para 1

…1080, Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107, Salisbury v Harrison & anor [2011] NSWLEC 1069, Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122, and Hendry & anor v Olsson & anor [2010] NSWLEC 1302. In these matters various trees were found to be part of a hedge, or not part of a hedge, based…
Ridley v The Owners Strata Plan No 60662
[2011] NSWLEC 1107 Para 1

…m v Payn [2011] NSWLEC 1012, Torday & Anor v Eather [2012] NSWLEC 1014, Cavalier v Young [2011] NSWLEC 1080, Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107, Salisbury v Harrison & anor [2011] NSWLEC 1069, Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122, and Hendry & anor v Olsson & anor [2010] NSWL…
McLaren v Lewis
[2011] NSWLEC 1170 Para 1

…tters (what does it require for plants to form a hedge?) by Moore SC and Hewett AC in Wisdom v Payn [2011] NSWLEC 1012 and Fakes C in McLaren v Lewis [2011] NSWLEC 1170. In Wisdom , the Commissioners addressed issues relating to the planting arrangement of trees. In McLaren , Fakes C at [24] regarded a group of trees…
Cavalier v Young
[2011] NSWLEC 1080 Para 1

…several cases that she says demonstrate this, including Wisdom v Payn [2011] NSWLEC 1012, Torday & Anor v Eather [2012] NSWLEC 1014, Cavalier v Young [2011] NSWLEC 1080, Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107, Salisbury v Harrison & anor [2011] NSWLEC 1069, Grantham Holdings Pty Ltd v Miller [201…
Salisbury v Harrison
[2011] NSWLEC 1069 Para 1

…her [2012] NSWLEC 1014, Cavalier v Young [2011] NSWLEC 1080, Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107, Salisbury v Harrison & anor [2011] NSWLEC 1069, Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122, and Hendry & anor v Olsson & anor [2010] NSWLEC 1302. In these matters various trees were fou…
Wisdom v Payn
[2011] NSWLEC 1012 Para 1

…, Fakes considered the discussion of these very matters (what does it require for plants to form a hedge?) by Moore SC and Hewett AC in Wisdom v Payn [2011] NSWLEC 1012 and Fakes C in McLaren v Lewis [2011] NSWLEC 1170. In Wisdom , the Commissioners addressed issues relating to the planting arrangement of trees. In M…
Hendry & anor v Olsson & anor
[2010] NSWLEC 1302 Para 1

…NSWLEC 1107, Salisbury v Harrison & anor [2011] NSWLEC 1069, Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122, and Hendry & anor v Olsson & anor [2010] NSWLEC 1302. In these matters various trees were found to be part of a hedge, or not part of a hedge, based on conclusions about whether they were planted or sel…
Breen & Anor v Caronna & Anor
[2008] NSWLEC 293 Para 1

…ties' agreement on consent orders, the Court is not obliged to make those orders. In fact, as expounded by Sheahan J in Breen & Anor v Caronna & Anor [2008] NSWLEC 293, the Court must still be satisfied of the jurisdictional tests before making consent orders.…

Legislation cited in this decision · 2

Threatened Species Conservation Act 1995 (NSW)
1 mention
Trees (Disputes Between Neighbours) Act 2006 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Johnson & Ors v Angus & Anor [2012] NSWLEC 1207
Hearing dates:	4 June 2012 and 26 July 2012
Decision date:	27 July 2012
Jurisdiction:	Class 2
Before:	Galwey AC
Decision:	(1)The application is upheld in part. (2)The directions made at the hearing of 4 June 2012 are vacated. (3)The applicants are to engage and pay for a suitably qualified and experienced arborist (minimum AQF Level 3) with appropriate insurance to remove T11 and the largest stem of T14 within 30 days of the date of these orders. The works are to be done in accordance with the WorkCover NSW Code of Practice for the Amenity Tree Industry. (4)The respondents are to provide all access necessary for the works in (3) on reasonable notice and during reasonable hours of the day. (5)The respondents are to engage a suitably qualified arborist (minimum AQF Level 3) to periodically (annually or as required) prune T4-T9 and T12-T20, including the remaining stems of T14, to remove fronds that overhang the applicants' property and that obstruct the view, in such a way that the trees' ongoing vigour and condition are not adversely affected. The works are to be done in accordance with AS4373:2007 Pruning of Amenity Trees and the WorkCover NSW Code of Practice for the Amenity Tree Industry. The initial pruning is at the respondents' expense. The cost of subsequent pruning is to be shared equally by the parties with the applicants paying the respondents 50% of any receipted invoice for the pruning works within 7 days of receiving such an invoice, if that invoice is provided to them within 14 days of completion of the works. (6)The applicants are to provide all access necessary for the works in (5) on reasonable notice and during reasonable hours of the day.
Catchwords:	TREES [NEIGHBOURS] Hedge; obstruction of views; one tree not part of hedge; planted so as to form a hedge; removal of two trees and pruning of others.
Legislation Cited:	Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Bentley & anor v Symonds & anor; Ghenzer & ors v Symonds & anor [2011] NSWLEC 1336 Breen & Anor v Caronna & Anor [2008] NSWLEC 293 Cavalier v Young [2011] NSWLEC 1080 Grantham Holdings Pty Ltd v Miller [2011] NSWLEC 1122 Hendry & anor v Olsson & anor [2010] NSWLEC 1302 McLaren v Lewis [2011] NSWLEC 1170 Ridley v The Owners Strata Plan No 60662 [2011] NSWLEC 1107 Salisbury v Harrison & anor [2011] NSWLEC 1069 Torday & Anor v Eather [2012] NSWLEC 1014 Wisdom v Payn [2011] NSWLEC 1012
Category:	Principal judgment
Parties:	Mr Anthony Johnson (First Applicant) Ms Pauline Neville (Second Applicant) Ms Lynne Parsons (Third Applicant) Mr Kenneth Angus (First respondent) Ms Jennifer Angus (Second respondent)
Representation:	Counsel Ms Angela Pearman (Applicants) Bartier Perry (Applicants) Mr Kenneth Angus (Respondents) (Litigant in person)
File Number(s):	20265 of 2012